Skakel's chance at freedom could hinge on April trial

David Hennesse, Greenwich Time

{"by..."/}By David Hennessey

Published 9:30 pm, Saturday, March 16, 2013

Michael Skakel listens during a parole hearing at McDougall-Walker Correctional Institution in Suffield, Conn., Oct. 24, 2012. Parole officials denied Skakel's first bid for parole since he was convicted a decade ago of killing his neighbor in 1975. Skakel is serving 20 years to life for fatally beating Martha Moxley with a golf club in Greenwich when they were 15-year-old neighbors.
Photo: Jessica Hill, Jessica Hill/Associated Press

Michael Skakel's biggest defeat came in 2002 when he was convicted of murdering his 15-year-old neighbor Martha Moxley in Belle Haven nearly 40 years ago.

But in the more than a decade since his conviction, what's followed is failure upon failure to overturn the decision and secure the Kennedy cousin's freedom. All the while maintaining his innocence, Skakel and his multiple appeals have failed to win over various judges and courts. His first parole hearing last fall resulted in the latest denial, and Skakel remains locked away in McDougall-Walker Correctional Institution in Suffield.

Now, Skakel, 52, is once again fighting for his freedom, this time on the grounds that his attorney in the 2002 trial, Mickey Sherman, did not adequately defend him, and that resulted in a sentence of 20 years to life. A trial over the matter is scheduled to begin April 15 in state Superior Court in Rockville.

Thwarted at every turn since 2002, Skakel's legal team will need to buck that trend and finally achieve a series of successes if it is to overcome long odds in this latest battle, according to legal experts. If successful, Skakel could well walk out of prison in the near future. Should he lose this upcoming legal skirmish, which is known as a habeas corpus trial, the road becomes even rougher, with one fewer option remaining.

A habeas corpus trial, a legal proceeding through which someone can challenge his or her imprisonment, can revolve around a variety of issues, including the right to a fair trial, the right to effective assistance of counsel, and the right to due process.

Steven B. Duke, professor of law at Yale Law School, discussed the basis of Skakel's claim regarding Sherman and what his defense must do at the trial to prove Sherman was ineffective.

"The basic requirements are set forth in a U.S. Supreme Court decision, Strickland v. Washington (1984)," Duke wrote in an email to Greenwich Time. "Defendant must show that his lawyer's representation fell below that reasonably to be expected of defense counsel -- representation that was not reasonably competent. If he shows that, he must also show that his lawyer's deficient performance was 'prejudicial,' meaning there is a reasonable probability that had the lawyer's failure not occurred, a more favorable result would have occurred (i.e. a hung jury or an acquittal)."

William V. Dunlap, law professor and associate dean for research at Quinnipiac University School of Law, said there is a heavy burden on the defense to show Sherman did not do his job.

"It's usually very difficult to persuade the court that it was ineffective assistance of counsel," he said.

"Trying to prevail in a writ of habeas corpus is very difficult," he said.

One of more than 30 witnesses who Skakel's defense has indicated may be called to testify in the April trial, Sherman has maintained that he ably defended Skakel.

Already facing a difficult task, attorneys for Skakel will also not have the opportunity to pick apart every aspect of Sherman's defense, according to a recent ruling.

Superior Court Judge Samuel Sferrazza threw out two of Skakel's claims in a March 1 decision. Issues about closing arguments in the 2002 trial and the case's transfer from juvenile court were previously upheld and could not be argued again, he ruled. Other components of Skakel's claims can move forward.

Duke went on to discuss the frequency of ineffective assistance of counsel claims.

"Such claims are commonplace," he wrote. "They are rarely successful, most likely less than 1 percent. In fact, most of them do not get to the hearing stage but are dismissed on the papers."

Dunlap said that should a judge rule Sherman's defense of Skakel was ineffective and his performance led to the guilty verdict, Skakel's conviction would be vacated.

"If the habeas court decides there was ineffective assistance of counsel, and vacates the conviction, then it is my belief the prosecution would probably appeal," he said.

The prosecution would also have to decide whether to retry Skakel.

"It's essentially like starting the trial again," Dunlap said.

Though Dunlap believes prosecutors would probably retry Skakel, it's not inconceivable that they could drop the case, should it reach that point, he said.

If Skakel succeeds in April, and if the results of the trial hold up through any appeals, and if prosecutors then drop the case -- or if Skakel is found not guilty in a retrial -- then he will finally have the freedom he has sought for more than a decade.

If Skakel loses in April?

He cannot raise the same ineffective assistance of counsel issues in a state court, but he might be able to raise them at a federal hearing, Dunlap said.

Also, there is no specific limit on the number of petitions that can be brought in a state court, he said.

If Skakel loses at the April trial, his lawyers have already indicated that another appeal could come into play. Skakel reserves the right to appeal the claims over Sherman's performance that the judge threw out in his March 1 decision, said Skakel's lawyer, Hubert Santos.